Opinion
No. 39363.
December 20, 1954.
1. Seaman — negligence — boat captain not guilty of — no liability to seaman under Jones Act.
Under facts of case, captain of oyster-dredging boat was not guilty of negligence, rendering his employer liable under Jones Act to member of crew who was injured when he placed his hand on a moving chain, which jerked the hand into a block through which chain passed, as dredge was being lowered. Title 46, U.S.C.A., Sec. 688.
Headnote as approved by Roberds, P.J.
APPEAL from the circuit court of Harrison County; LESLIE B. GRANT, Judge.
Morse Morse, Gulfport, for appellant.
I. The office of a motion non obstante veredicto is (1) limited to defects in the pleadings and does not contemplate a review by the courts of the evidence, and (2) if it does, the motion was not timely made. Boyle Gin Co. v. W.F. Moody Co., 188 Miss. 44, 193 So. 917; Garret v. Beaumont, 24 Miss. (2 Cush.) 377; Lamar County v. Gulf S.I.R.R. Co., 118 Miss. 243, 79 So. 90; Mississippi v. The Commercial Bank of Manchester, 6 Miss. 233; Solcum v. New York Life Ins. Co., 228 U.S. 364, 57 L.Ed. 879, 33 S.Ct. 253, 177 Fed. 842; Sec. 1544, Code 1942; 30 Am. Jur., Judgments, Sec. 53 p. 845; 49 C.J.S., Judgments, Sec. 60(b)(1) p. 152.
II. Assuming that a motion non obstante veredicto is available to a defendant and further assuming that the Court may consider the evidence when presented with such a motion, the evidence on behalf of the plaintiff must be taken as true; it must be considered in the light most favorable to plaintiff's cause; and all inferences favorable to plaintiff's cause must be drawn. 30 Am. Jur., Judgments, Sec. 57 p. 849; 49 C.J.S., Judgments, Sec. 60(4) p. 166.
III. All questions of substantive law in a suit brought under the Jones Act in a State court are to be resolved according to the existing Federal law. Garrett v. Moore-McMormac Co., 217 U.S. 239, 87 L.Ed. 239; Macomber v. De Bardeleben Coal Co., 200 La. 633, 8 So.2d 624 (cert. denied, 317 U.S. 661, 87 L.Ed. 532, 63 S.Ct. 61).
IV. The question of the employer-employee relation under the Jones Act was for the jury, and it was error for the Court to set the jury's finding aside. Cromwell v. Slaney, 65 F.2d 940; In re The Norland, 101 F.2d 967; Osland v. Star Fish Oyster Co., 107 F.2d 113, 118 F.2d 772; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Southern Shell Fish Co. v. Plaisance, 196 F.2d 312.
V. The evidence supports the jury's finding of negligence. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 71 L.Ed. 1069, 47 S.Ct. 600; Greenshaw v. Pacific-Atlantic S.S. Co., 190 Oregon 182, 224 P.2d 918; Hopson v. Gulf Oil Corp., 237 S.W.2d 352; Jamison v. Encarnacion, 281 U.S. 635, 74 L.Ed. 1082, 50 S.Ct. 440; Lavender v. Kurn, 327 U.S. 645, 90 L.Ed. 916; Sundberg v. Washington Fish Oyster Co., 138 F.2d 801; Jones Act, 46 U.S.C.A. 688.
Rushing Guice, Biloxi; Mize, Thompson Mize, Gulfport, for appellees.
I. The granting of a judgment non obstante veredicto in this case was the proper exercise of the discretion of the Judge, and the motion was duly made. Boyle Gin Co. v. W.F. Moody Co., 188 Miss. 44, 193 So. 917; Gulf M. O.R.R. Co. v. Joiner, 201 Miss. 442, 29 So.2d 255; 49 C.J.S. pp. 148, 154, 171, 185.
II. The facts in this case, as shown by the record, fail to show any negligence on the part of the appellee, either shown by proof or by every reasonable inference therefrom.
III. The relationship of employer-employee, or of joint adventurers is resolved according to the common-law test. Quinn v. Porter, 215 Miss. 314, 60 So.2d 797, 801.
IV. There was no employer-employee relation under the Jones Act between appellant and appellee. Cromwell v. Slaney, 65 F.2d 940; In re The Norland, 101 F.2d 967; Larson v. Lewis-Sinas-Jones Co., 84 P.2d 296; Local 36 of International Fishermen, etc. v. United States, 177 F.2d 320, 330; Osland v. Star Fish Oyster Co., 107 F.2d 112; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Southern Shell Fish Co. v. Plaisance, 196 F.2d 312, 313; Jones Act, 46 U.S.C.A. 688.
V. The uncontroverted evidence contradicts the jury's finding of negligence.
Lyons, the appellant, brought this action against Weems Brothers Seafood Company, appellee, for damages resulting to appellant, as alleged, from the negligence of M.L. Trosclair, a servant of appellee and a fellow servant of appellant. Plaintiff recovered a judgment against defendant for the sum of $3,500. The trial judge, on motion of defendant, set this judgment aside and rendered a judgment in favor of the defendant. From this action Lyons appeals.
Appellee, by its pleas, set up that neither Trosclair nor Lyons was its employe, but, if so, Trosclair was guilty of no negligence causing the injuries. The suit was brought under what is called Jones Act (Title 46 U.S. Code Anno., p. 277, Sec. 688), but both sides proceed upon the theory that Lyons, to recover, had the burden of showing the existence of employer-employee relation between the Seafood Company and Trosclair, and that the injuries resulted from the negligence of Trosclair.
(Hn 1) We think that Lyons entirely failed to show any negligence on the part of Trosclair, so we pretermit any decision as to whether he was the servant of the Seafood Company.
We consider now the evidence on the question of negligence of Trosclair.
Under an arrangement with the Seafood Company, Trosclair and Lyons and three other persons, constituting a crew of five, were dredging for oysters in the Gulf of Mexico off the coast of Mississippi, using the "Thomas D. Kirnan," a boat owned by the Seafood Company. Trosclair was acting as captain by consent of the boat owner and the other members of the crew, and was directing the oyster-gathering operations. Lyons' duties were to cook the meals for the crew and aid in separating the merchantable from the unmerchantable oysters, or, as he said, "pick the oysters out." The process of gathering the oysters, as we understand from the record, was this: There were two dredges, one on either side of the boat. These were let down to the oyster beds, there properly maneuvered so as to bring the oysters into dredges, which were then lifted upon the deck and the oysters emptied from the dredges onto the deck or some proper place thereon. The power for this operation was furnished by the engine motor which propelled the boat. Chains were used to lift the dredges, and these passed over a roller and through what are called blocks or king posts. The dredges were lowered and lifted by use of a lever on deck which applied the power for that operation. At the time of the injury the lever was being applied by crew-member Ledet. Trosclair, from the wheelhouse, indicated to the lever-operator when the dredges should be raised and lowered. One dredge was being raised from the water onto the deck. Lyons had placed his left hand on the iron chain near the point where the chain passed through one of the rollers, when his hand was jerked into the block and badly damaged by the moving chain. As to what happened, Lyons was asked, "And while you were standing there, you had your hand on this iron chain near the point where it went through one of these rollers? A. Yes, sir. Q. And because of that you were hurt? A. Yes, sir." At another place he testified: "I happened to put my hand on the chain just as the boy throwed the dredging and jerked my hand up into the block."
It is thus seen that Lyons was not about his duties. No duty required him to place his hand upon the chain. He was not where his duties called. He was following no directive given him by anyone. He was 53 years of age and had spent his entire adult life on, in, and about fishing boats. He had done much work on fishing boats as a carpenter. He was thoroughly familiar with such boats, and with this particular boat. He had helped operate fishing boats gathering shrimp and oysters. Working upon, in and around fishing boats, and assisting in their operation, especially in gathering shrimp and oysters, had been his life's work. He knew all about the danger in placing his hand upon the chain while the dredge lifting and lowering process was being carried on.
He seems to try to base negligence on the failure of Trosclair to call out that the dredge was being lowered, thereby giving him warning not to place his hand upon the moving chain. It is shown that usually the dredge remained overboard some two or three minutes. That process had gone on through the years. Lyons was thoroughly familiar with it. No duty rested upon Trosclair to warn the members of the crew each time the dredges were lowered or raised. No such custom is shown. Lyons knew as much about that as did Trosclair.
Again, Lyons seems to contend that Trosclair should have anticipated that he, Lyons, in moving upon the deck of the ship, might have had need to grasp something and thereby steady himself against unusual winds and waves passing across the deck of the ship, and that in such an emergency he might have caught hold of the moving chain. One could not reasonably be expected to anticipate that another would resort to such an unusual act. Besides, Lyons knew as much as did Trosclair of the danger of doing that. And, too, the proof discloses this was a clear day. No unusual wind and no waves at all were passing over the deck. No need is shown for a lifetime seaman, familiar with boats of this type and with this particular boat, to resort to any such unusual and dangerous act as the grasping of this moving chain. The learned trial judge correctly rendered judgment for the defendant Seafood Company.
Affirmed.
Hall, Kyle, Holmes, and Gillespie, JJ., concur.